Prof. John Harrison: Remand Without Vacatur Assumes that Unlawful Regulations Bind Until Courts Act
I’m delighted to report that Prof. John Harrison (University of Virginia) will be guest-blogging this week on the subject of Administrative Procedure Act remedies, and specifically the putative remedy of “remand without vacatur.” APA remedies is a huge and recurring question, and it has new urgency after the Supreme Court’s cert grant in United States v. Texas.
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Thanks to a kind invitation from Sam Bray on behalf of the Volokh Conspiracy blog, I’ll be doing a series of posts based on an article titled Remand Without Vacatur and the Ab Initio Invalidity of Unlawful Regulations in Administrative Law. The article is forthcoming in the BYU Law Review, whose editors have graciously agreed to this preview. The current version is posted to SSRN. (Thanks also to Volokh blogger Jonathan Adler for comments on the draft.)
The article argues that the important administrative law doctrine of remand without vacatur rests on a false premise. Courts that follow the doctrine assume that when they find that an agency action is unlawful, they have discretion whether to vacate the action, and thereby deprive the action of its binding legal force, or leave that force in place. If the reviewing court decides not to vacate, but instructs the agency to conduct further proceedings to repair the defects that made the action unlawful, it is said to remand without vacating. The most important applications of the doctrine, with which the article is primarily concerned, involve agency regulations that purport to impose duties on private parties. The doctrine has been embraced by most of the federal courts of appeals, and is a mainstay of D.C. Circuit administrative law practice. The Supreme Court has neither endorsed nor rejected it.
As applied to regulations that impose duties on private people, remand without vacatur rests on a mistaken assumption. Courts applying the doctrine assume that unlawful regulations are binding unti
Article from Reason.com
